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Ask The Lawyer, WAS BOSS RIGHT TO FIRE HER?

SEPARATION ANXIETY
KEEPS NEW MOM AT HOME – WAS BOSS RIGHT TO FIRE HER?

QUESTION: When my baby was born last year, I took 12 weeks
of leave to bond with her. When it was time to return to work, I found I could
not bear to be away from my little girl for more than a few hours: The first
day I tried to go back to work, I had a severe panic attack and ended up in the
hospital. I was diagnosed as suffering from separation anxiety. I’m working with
a doctor and a therapist to get over the fear I feel when I leave my little one
at home, but I have not been able to return to work full-time. When I asked if
I could be allowed do at least part of my work from home – my work is done
almost entirely online and over the phone – while I deal with my anxiety, I was
terminated. My supervisor said the company does not allow anyone to
telecommute. Is there anything I can do?

ANSWER: You may have rights under the Americans with
Disabilities Act (ADA) or Michigan’s Persons with Disabilities Civil Rights Act
(PWDCRA) which prohibit workplace discrimination against a “qualified
individual.” The laws not only prohibit employers from discriminating against
people with disabilities, they also require employers to make “reasonable
accommodations” – which can include telecommuting or a reduction in hours – if
the accommodation will not impose an “undue hardship” on the employer. (The ADA
applies to employers with at least 15 employees, the PWDCRA applies to
employers with just one employee.)

You are a “qualified individual” under the ADA if
you have a disability; you are otherwise qualified for the job despite the
disability, and you can perform the “essential functions” of your job with or
without an accommodation.

From what you have described, you may pass the
ADA test. Both post-partum depression and separation anxiety have been
recognized by the courts as disabilities. Since you had been working before
your leave – presumably without complaint – you most likely have all the
experience, skills, degrees and/or certifications required for your job. The
central question is whether you can perform the “essential functions” of your
job if you worked from home part-time.

While many employers claim that workers really
can’t do the job unless they are physically present at work, Courts are increasingly
unwilling to accept an employer’s say-so. In 2018, a Tennessee employer had to pay more than
$100,000 after refusing an attorney’s request to work from home for ten weeks
while she was on bedrest for pregnancy complications. The employer’s claim that
the attorney couldn’t meet the essential functions of her job (going to court,
for example) if she telecommuted, was disproven by evidence that the woman had
successfully telecommuted in the past and had not been required to participate
in a trial during her eight years with the company.

Last summer, the Sixth Circuit Court of
Appeals
ruled that telecommuting part-time was a reasonable accommodation for a woman
who – like you – suffered severe separation anxiety. As in the Tennessee case,
there was evidence that the woman was able to perform all the essential elements
of her job with the accommodation requested and that allowing her to work
part-time from home for a few months was not an undue hardship on the employer.

Because you appear to be qualified under the
ADA and your request for an accommodation seems to be reasonable, it is likely
your employer discriminated against you, violating the ADA, by refusing your
request.

Your employer’s refusal to even consider your
request appears to be a second violation of the ADA, which states employers
must engage in an “interactive process” when a request for accommodation is
made. Employers are not required to give workers any accommodation they want,
but must at least try to work something out so that an otherwise qualified
employee may stay on the job.

The lawyers at GWINN LEGAL PLLC are
experienced attorneys and are happy to answer your questions. Give us a call
for a free initial telephone consultation about your legal needs. For
consideration of your questions in our web column, please submit your inquiry
on the “Contact Us” page of our website at www.gwinnlegal.com.

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